G.R. No. L-20435 October 23, 1923LUIS ASIAIN,plaintiff-appellant,vs.BENJAMIN JALANDONI,defendant-appellee.Arroyo and Gurrea for appellant.Francisco Soriano for appellee.MALCOLM,J.:Luis Asiain, the plaintiff-appellant in this case, is the owner of thehaciendaknown as "Maria" situated in the municipality of La Carlota, Province of Occidental Negros, containing about 106 hectares. Benjamin Jalandoni, the defendant-appellee, is the owner of anotherhaciendaadjoining of Asiain.Asiain and Jalandoni happening to meet no one of the days of May, 1920, Asiain said to Jalandoni that he was willing to sell a portion of hishaciendafor the sum of P55,000. With a wave of his hand, Asiain indicated the tract of land in question, affirming that it contained between 25 and 30 hectares, and that the crop of sugar cane then planted would produce not less than 2,000 piculs of sugar. But Jalandoni, remaining doubtful as to the extent of the land and as to the amount of crop on it, Asiain wrote Jalandoni the letter which follows:HDA. MARIA May, 26, 1920. MR. BENJAMIN JALANDONI.DEAR BENJAMIN: I am in receipt of your letter and with regard to your statement that parcel does not contain 21 hectares I do not believe. I bet anything that part only which is planted with cane contains more than 20 hectares, I bet 2 against 1.If you agree, I would be that you pay only one-half. I am not a surveyor, but these days I had the pleasure to survey the land and I know more or less its area.1awph!l.netHere we are not to deceive each other. If you like that parcel and if you want to buy it I will give you good propositions. I don't know where and how they learned that I was selling thehaciendaand they made me a good offer, but as we do not want to part but with that parcel, hence my propositions are the following, in view of the time that has elapsed and the progress of the cane.I assure (aseguro) that there are 2,000 piculs and sell on that basis, provided that the cane is milled in due time. In case the sugar does not amount to 2,000 piculs, I will pay in sugar all such amount as will be necessary to complete the 2,000, but if after milling the cane, as I say, there is an excess over 2,000 piculs, all the excess shall be mine. So that if you like, I make the sale for the same price that we talked about and the same conditions, not a dime more or less.Since you left it did rain, so the "alociman" (Philippine herb) of Guimib must die on the field, whether of thehaciendaor of the "lagatio." You have a contract for a lump sum. Now they have begun to plow the old plantations within the boundary some days ago and you may rest and throw one (unintelligible), answer yes or no, so that I may decide.Your friend LUIS ASIAIN Sometime later, in July of the same year, Asiain and Jalandoni having met at Iloilo, they prepared and signed the memorandum-agreement which follows:Purchase of land of Mr. Luis Asiain and his wife Maria Cadenas, by B. Jalandoni, containing 25 hectares more or less of land bounded by property of the purchaser, with its corresponding crop, estimated at 2,000 piculs, the total value of which is 55 thousand. The price is to be paid by paying 30 thousand at the signing of the document, and 25 thousand within one year, with interest at the rate of 10 per cent.Mr. Asiain is under obligation to take care of all the plantation until the planting is finished and in case the crop exceeds 2,000 piculs, all the excess will belong to Mr. Asiain.The adjacent landowner on the north and the west is the vendor himself, on the east, B. Jalandoni, and on the south, B. Jalandoni and the widow of Abdon Ferrer.The purchaser is under obligation to answer for all the rights and obligations of the land with the central of Inchausti.After the planting of the cane is completely finished, Mr. Asiain shall vacate the parcel sold to the purchaser.The expenses for taking care of said plantation until the planting is completely finished will be for the account of the vendor Mr. Asiain.(Sgd.) "LUIS ASIAIN "BENJAMIN JALANDONI" During all of the period of negotiations, Jalandoni remained a doubting Thomas and was continually suggesting that, in his opinion, the amount of the land and of the crop was overestimated. Asiain on his part always gave assurances in conformity with the letter which he had written intended to convince Jalandoni that the latter was in error in his opinion. As a result, the parties executed the agreement which follows:This document, executed in the city of Iloilo, Province of Iloilo, Philippine Islands, by and between Messrs. Luis Asiain and Benjamin Jalandoni, of age and residents of the municipality of La Carlota, Province of Occidental Negros, Philippine Islands.Witnesseth:(1) That Luis Asiain does hereby promise and bind himself to sell to Benjamin Jalandoni a parcel of land thehacienda"Maria" of the aforesaid Luis Asiain, situated in the municipality of La Carlota, Province of Occidental Negros, P.I.(2) That Benjamin Jalandoni does hereby promise and bind himself to purchase the aforesaid parcel of land in the sum P55,000 upon certain conditions specified in a memorandum signed by the parties which is in the hands of Attorneys Padilla & Treas.(3) That upon the signing of this agreement, the vendor shall have the right to collect from the purchaser part of the price giving receipts thereof signed by said vendor.(4) That in case the vendor should withdraw from the contract and desist from signing the document of final sale, the purchaser shall have the right to collect from said vendor all such amount as may have been advanced on account of this sale, with an indemnity of P15,000 as penalty.(5) In case it is the purchaser who should withdraw from the contract of sale, then he will lose all such amount as may have been paid in advance on account of this transaction.In witness whereof, we have hereunto affixed our signatures, at Iloilo, Iloilo, this 12th day of July, 1920.(Sgd) "LUIS ASIAIN "BENJAMIN JALANDONI Signed in the presence of: (Sgd.) "ENGRACIO PADILLA "P.T. TREAS" Once in possession of the land, Jalandoni did two things. He had the sugar cane ground in La Carlota Sugar Central with the result that it gave and output of P800 piculs and 23 cates of centrifugal sugar. When opportunity offered, he secured the certificate of title of Asiain and produced a surveyor to survey the land. According to his survey, the parcel in question contained an area of 118 hectares, 54 ares, and 22 centiares.Of the purchase price of P55,000, Jalandoni had paid P30,000, leaving a balance unpaid of P25,000. To recover the sum of P25,000 from Jalandoni or to obtain the certificate of title and the rent from him, action was begun by Asiain in the Court of First Instance of Occidental Negros. To the complaint, an answer and a counter-complaint were interposed by the defendant, by which it was asked that he be absolved from the complaint, that the contract be annulled, both parties to return whatever they had received, and that he recover from the plaintiff the sum of P3,600 annually as damages. In a well-reasoned decision, the Honorable Eduardo Gutierrez David, Judge of First Instance, declared null the document of purchase and its related memorandum; absolved the defendant from the payment of P25,000; ordered the plaintiff to return to the defendant the sum of P30,000 with legal interest from July 12, 1920; ordered the defendant to turn over to the plaintiff the tract of land and the certificate of title No. 468, and absolved the plaintiff from the counter-complaint, all without special finding as to the costs. It is from said judgment that the plaintiff has appealed.The true facts need not give us pause. They are as found by the trial judge and as pratically agreed to by the parties. It is only necessary to keep in mind that apparently there was always a difference of opinion between Asiain and Jalandoni as to the area of the tract and as to the crop of sugar cane; that the agreement between them mentions land containing 25 hectares more or less, giving the boundaries, and a crop estimated and in one sense warranted at 2,000 piculs, and that in reality the land contained only a little more than 18 hectares and produced a crop of only about 800 piculs. The legal consequences arising from these facts are more difficult of determination.Our Civil Code contains provisions which must be taken into consideration. Codal articles 1265, 1266, and 1269 relate to consent given by reason of error and deceit. They provide the rules which shall avoid contracts for these and other reasons. But the provisions of the Civil Code most directly pertinent are found in articles 1469, 1470, and 1471.The first two mentioned articles, 1469 and 1470, are not applicable because of the proviso relating to the sale being made at a certain price for each unit of measure or number which is not our case. The facts seem to fall within article 1471. It first paragraph provides that in case of the sale of real estate for a lump sum and not at the rate of specified price of each unit or measure, there shall be no increase or decrease of the price even if the area be found to be more or less than that stated in the contract. The next paragraph provides that the same rule is applicable when two or more estates are sold for a single price. Then comes the following: ". . . but, if in addition to a statement of the boundaries, which is indispensable in every conveyance of real estate, the area estate should be designated in the contract, the vendor shall be obliged to deliver all that is included within such boundaries, even should it exceed the area specified in the contract; and, should he not be able to do so, he shall suffer a reduction of the price in proportion to what is lacking of the area,unless the contract be annulled by reason of the vendee's refusal to accept anything other than that which was stipulated."A study of the Spanish commentators discloses that the meaning of article 1471 is not clear as it might be, and that they are not unanimous in their views. Manresa gives emphasis to the intention of the parties and the option on the part of the purchaser to rescind the contract. To quote from Manresa:The rule in the latter case is found in the second paragraph of article 1471, with the exception of the first clause which refers to the former hypothesis. This rule may be formulated as follows: Whether the case is one of sale of realty for a lump sum or of two or more for a single price which is also a lump sum and, consequently, not at the rate of specified price for each unit of measure or number, the vendor shall be bound to deliver all that is within the boundaries stated although it may exceed the area or number expressed in the contract; in case he cannot deliver it, the purchaser shall have the right to reduce the price proportionately to what is lacking of the area or number,or rescind the contract at his option.x x x x x x x x xThe manner in which the matter covered by this article was distributed in its two paragraphs contributes to making it difficult to understand. The rule might have been clearly stated had the first clause of the second paragraph been included in the first paragraph, the latter to end with the words, "The same rule shall apply when two or more estates are sold for a single price." And if by constituting an independent paragraph, with the rest of the second paragraph, it were made to appear more expressly that the rule of the second paragraph thus drawn referred to all the cases of paragraph one, as we have expounded, namely, to the case of a sale of one single estate and that of two or more for one single price, the precept would have been clearer.In our opinion, this would have better answered what we deem to be indubitable intention of the legislator.Some eminent commentators construe the last part of article 1471 in a different way. To them the phrase "and should he not be able to do so" as applied to the vendor, does not mean as apparently it does "should he not be able to deliver all that is included within the boundaries stated," but this other thing, namely, that if by reason of the fact that a less area is included within the boundaries than that expressed in the contract, it is not possible for the vendor to comply therewith according to its literal sense, he must suffer either the effects of the nullity of the contract or a reduction of the price proportionately to what may be lacking of the area or number. It is added as a ground for this solution that if the vendor fulfills the obligation, as stated in the article, by delivering what is not included within the boundaries, there can never by any case of proportionate reduction of the price on account of shortage of an area, because he does not give less who delivers all that he bound himself to.According to this opinion, which we believe erroneous, if within the boundaries of the property sold, there is included more than area than that expressed in the title deeds, nothing can be claimed by the vendor who losses the value of that excess, but if there is less area, then he loses also, because either the price is reduced or the contract is annulled. This theory would be anomalous in case of sale of properties in bulk, but, above all, would do gross injustice which the legislator never intended.There is no such thing. So long as the vendor can deliver, and for that reason, delivers all the land included within the boundaries assigned to the property, there can be no claim whatsoever either on his part, although the area may be found to be much greater than what was expressed, nor on the part of the purchaser although what area may be in reality much smaller. But as he sold everything within the boundaries and this is all the purchaser has paid, or must pay, for whether much or little, if afterwards, it is found that he cannot deliver all, because, for instance, a part, a building, a valley, various pieces of land, a glen etc., are not his, there is no sale of a specified thing, there is longer a sale of the object agreed upon, and the solution given by the article is then just and logical: Either the contract is annulled or the price is reduced proportionately." (10Comentarious al Codigo Civil, p. 157.)The principle is deduced from the Code, that if land shall be sold within boundaries with an expression of the area and if the area is grossly deficient, the vendee has an option, either to have the price reduced proportionately or to ask for the rescission of the contract. The rule of the civil law is more favorable to the purchaser than is the common law. It gives the excess to the purchaser without compensation to the vendor, where the property is sold by a specific description followed by the mention of the quantity or measure, but allows the purchaser either to secure a deduction from the price in case a deficiency or to annul the contract.The decision of this court which gave most direct consideration to article 1471 of the Civil Code, now chiefly relied upon by the appellant, is found in Irureta Goyenavs.Tambunting ([1902], 1 Phil., 490). The rule announced in the syllabus is this: "An agreement to purchase a certain specified lot of land at a certain price is obligatory and enforceable regardless of the fact that its area is less than that mentioned in the contract." Taken literally, this rule would lead to the result desired by the appellant. But the syllabus naturally must be understood in relation what is found in the decision itself; and the fact was that the tract of land was mentioned as being located at No. 20 Calle San Jose, Ermita, Manila. The private contract expressed a specific thing as the object of the contract and specified a certain price. There was no statement in the document of the superficial area and no hint in the record that either or both parties were misled. The facts, therefore, are different than those before us and the doctrine in the Irureta Goyenavs.Tambunting case, can well be followed and distinguished.A comparative study of the American Authorities throws considerable light on the situation. In volume 39 Cyc., page 1250, under the subject "Vendor and Purchaser," is found the following:If, in a contract of sale the quantity of the realty to be conveyed is indicated by a unit of area, as by the acre, a marked excess or deficiency in the quantity stipulated for is a ground for avoiding the contract. Since it is very difficult, if not impossible, to ascertain the quality of a tract with perfect accuracy, a slight excess or deficiency does not affect the validity of the contract.Where, however, the contract is not for the sale of a specific quantity of land, but for the sale of particular tract, or designated lot or parcel, by name or description, for a sum in gross, and the transaction isbona fide, a mutual mistake as to quantity, but not as to boundaries, will not generally entitle the purchaser to compensation, and is not ground for rescission. But it is well settled that a purchaser of land, when it is sold in gross, or with the description, "more or less" or "about," does not therebyipso factotake all risk of quantity in the tract. If the difference between the real and the represented quantity is very great, both parties act obviously under a mistake which it is the duty of a court of equity to correct. And relief will be granted when the mistake is so material if the truth had been known to the parties the sale would not have been made.Volume 27 of the Ruling Case Law, pages 354, 434, 436, states what follows:A mutual mistake as to the quantity of the land sold may afford ground for equitable relief. As has been said, if, through gross and palpable mistake, more or less land should be conveyed than was in the contemplation of the seller to part with or the purchaser to receive, the injured party would be entitled to relief in like manner as he would be for an injury produced by a similar cause in a contract of any other species. And when it is evident that there has been a gross mistake s to quantity, and the complaining party has not been guilty of any fraud or culpable negligence, nor has he otherwise impaired the equity resulting from the mistake, he may be entitled to relief from the technical or legal effect of his contract, whether it be executed or only executory. It has also been held that where there is a very great diference between the actual and the estimated quantity of acres of land sold in gross, relief may be granted on the ground of gross mistake. Relief, however, will not be granted as general rule where it appears that the parties intended a contract of hazard, as where the sale is a sale in gross and not by acreage or quantity as a basis for the price; and it has been held that a mistake on the part of the vendor of a town lot sold by description as to number on the plat, as to its area or dimensions, inducing a sale thereof at smaller price than he would have asked had he been cognizant of its size, not in any way occasioned or concealed by conduct of the purchaser, constitutes no ground for the rescission of the contract. The apparent conflict and discrepancies in the adjudicated cases involving mistakes as to quantity arise not from a denial of or a failure to recognize the general principle, but from the difficulty of its practical application in particular cases in determining the questions whether the contract was done of hazard as to quantity or not and whether the variance is unreasonable. The relative extent of the surplus or deficit cannot furnish, per se, an infallible criterion in each case for its determination, but each case must be considered with reference not only to that but its other peculiar circumstances. The conduct of the parties, the value, extent, and locality of the land, the date of the contract, the price, and other nameless circumstances, are always important, and generally decisive. In other words, each case must depend on its own peculiar circumstances and surroundings.The rule denying relief in case of a deficit or an excess is frequently applied in equity as well as at law, but a court of equity will not interfere on account of either a surplus or a deficiency where it is clear that the parties intend a contract of hazard, and it is said that although this general rule may not carry into effect the real intention of the parties it is calculated to prevent litigation. From an early date, courts of equity under their general jurisdiction to grant relief on the ground of mistake have in case of mistake in the estimation of the acreage in tract sold and conveyed interposed their aid to grant relief to the vendor where there was a large surplus over the estimated acreage, and to the purchaser where there was large deficit. For the purpose of determining whether relief shall be granted the courts have divided the cases into two general classes: (1) Where the sale is of a specific quantity which is usually denominated a sale by the acre; (2) where the sale is usually called a sale in gross. . . .Sales in gross for the purpose of equitable relief may be divided into various subordinate classifications: (1) Sales strictly and essentially by the tract, without reference in the negotiation or in the consideration to any designated or estimated quantity of acres; (2) sales of the like kind, in which, though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description, and under such circumstances or in such a manner as to show that the parties intended to risk the contingency of quantity, whatever it might be, or how much so ever it might exceed or fall short of that which was mentioned in the contract; (3)sales in which it is evident, from extraneous circumstancesof locality, value, price, time,and the conduct and conversations of the parties, that they did not contemplate or intend to risk more than the usual rates of excess or deficit in similar cases, or than such as might reasonably be calculated on as within the range of ordinary contingency; (4) sales which, though technically deemed and denominated sales in gross, are in fact sales by the acre, and so understood by the parties. Contracts belonging to either of the two first mentioned classes, whether executed or executory, should not be modified by the chancellor when there has been no fraud. Butin sales of either the third of fourth kind, an unreasonable surplus or deficit may entitle the injured party to equitable relief, unless he has, by his conduct, waived or forfeited his equity. . . .The memorandum-agreement between Asiain and Jalandoni contains the phrase or "more or less." It is the general view that this phrase or others of like import, added to a statement of quantity, can only be considered as covering inconsiderable or small differences one way or the other, and do not in themselves determine the character of the sale as one in gross or by the acre. The use of this phrase in designating quantity covers only a reasonable excess or deficiency. Such words may indeed relieve from exactness but not from gross deficiency.The apparent conflict and discrepancies in the adjudicated cases arise not from a denial of or a failure to recognize the general principles. These principles, as commonly agreed to, may be summarized as follows: A vendee of land when it is sold in gross or with the description "more or less" does not therebyipso factotake all risk of quantity in the land. The use of "more or less" or similar words in designating quantity covers only a reasonable excess or deficiency. Mutual mistake of the contracting parties to sale in regard to the subject-matter of the sale which is so material as to go to the essence of the contract, is a ground for relief and rescission. It has even been held that when the parties saw the premises and knew the boundaries it cannot prevent relief when there was mutual gross mistake as to quantity. Innocent and mutual mistake alone are sufficient grounds for rescission. (Bighamvs.Madison [1899], 47 L. R. A., 267) The difficulty comes from the application of the principles in particular cases.A practical demonstration of what has just been said is disclosed by the notes in volume 27 of Ruling Case Law, page 439. In the following cases, relief was denied: Lawsonvs.Floyd, 124 U. S., 108; 8 S. Ct., 409; 31 U. S. (L. ed.), 347 (estimated acreage about 1,000 acres; shortage 368 acres); Frederickvs.Youngblood, 19 Ala., 680; 54 Am. Dec., 209 (estimated acreage 500 acres more or less; shortage 39 acres); Jonesvs.Plater, 2 Gill (Md.), 125; 41 Am. Dec., 408 (stated acreage 998 acres; shortage 55 acres); Frenchevs.State, 51 N. J. Eq., 624; 27 Atl., 140; 40 A. S. R., 548 (stated acreage 195-98/100 be the same more or less; shortage 1-37/100); Faurevs.Martin, 7 N. Y., 210; 57 Am. Dec., 515 (stated acreage 96 acres more or less; deficit 10 acres); Smithvs.Evans, 6 Bin. (Pa.), 102; 6 Am. Dec., 436 (shortage of 88 acres in tract conveyed as containing 991 1/4 acres more or less); Jollifevs.Hite, 1 Call (Va.), 301; 1 Am. Dec., 519 (stated acreage 578 acres more or less; shortage 66 acres); Pendletonvs.Stewart, 5 Call (Va.), 1;2 Am. Dec., 583 (stated acreage 1,100 acres more or less; shortage 160 acres); Nelsonvs.Matthews, 2 Hen. & M. (Va.), 164; 3 Am. Dec., 620 (stated acreage 852 acres more or less; shortage of 8 acres). In the following cases relief was granted: Harrelvs.Hill, 19 Ark., 102; 68 Am. Dec., 202 (stated acreage 180 acres more or less; deficit 84 acres); Solingervs.Jewett, 25 Ind., 479; 87 Am. Dec., 372 (stated acreage 121 acres more or less; deficit 36 acres); Haysvs.Hays, 126 Ind., 92; 25 N.E., 600; 11 L. R. A., 376 (stated acreage 28.4 acres more or less; deficit 5 acres); Baltimore, etc., Land Soc.vs.Smith, 54 Md., 187; 39 Am. Rep., 374 (stated acreage about 65 acres; deficit 30 to 35 acres); Newtonvs.Tolles, 66 N. H., 136; 19 Atl., 1092; 49 A. S. R., 593; 9 L. R. A., 50 (stated acreage about 200 acres; deficit 65 acres); Cousevs.Boyles, 4 N. J. Eq., 212; 38 Am. Dec., 212 (stated acreage 135 acres more or less; deficit 30 acres) Belknapvs.Sealey, 14 N. Y., 143; 67 Am. Dec., 120 (stated acreage 8 acres more or less; deficit 4 acres); Painevs.Upton, 87 N.Y., 327; 41 Am. Rep., 371 (stated acreage "about 222 acres be the same more or less;" shortage 18 acres); Bighamvs.Madison, 103 Tenn., 358; 52 S. W., 1074; 47 L. R. A., 267 (stated acreage 25 acres more or less; deficit 12 acres); Smithvs.Fly, 24 Tex., 345; 76 Am. Dec., 109 (stated acreage 500 acres more or less; deficit 115 acres); Triplettvs.Allen, 26 Grat. (Va.), 721; 21 Am. Dec., 320 (stated acreage 166 acres more or less; deficit 10 acres); Epesvs.Saunders, 109 Va., 99; 63 S. E., 428; 132 A. S. R., 904 (stated acreage 75 acres more or less; deficit 22 acres); McCombvs.Gilkeson, 110 Va., 406; 66 S. E., 77; 135 A. S. R., 944 (stated acreage 245 acres more or less; deficit 10 acres).A case often cited and which on examination is found to contain a most exhaustive review of the decisions, is that of Belknapvs.Sealey ([1856], 14 N.Y. 143; 67 Am. Dec.,, 120) The facts were: "Upon the merits of the controversy the case is quite simple in its facts. The land in question is situated in the city of Brooklyn; and being valuable only for division and sale as city lots, its valuable only for division and sale as city lots, its value is precisely in proportion to the quantity. In consideration of the gross sum of fourteen thousand dollars, of which one thousand dollars was paid down, the defendant agreed to convey the land to the plaintiff, describing it as "the premises conveyed to him by Samuel T. Roberts," by deed dated about nine months previous. The deed of Roberts contained a definite description by meters and bounds, and stated the quantity to be"about nine acres, more or less,"excepting a certain parcel of one acre and six perches. The quantity in fact is only about half as much as the deed asserted. The plaintiff, in agreeing to purchase the tract at the sum named, acted under a mistake which affected the price nearly one half, and the judge has found that the seller was mistaken also. . . . The Judge has found that the actual quantity was substantially and essentially less than the plaintiff supposed he was purchasing; and although the finding does not so state in terms, there can be no difficulty, I think, in affirming that if the true quantity had been known, the contract would not have been made. The agreement has never been consummated by a conveyance. These are the only essential facts in the case." The learned Judge remarked: "The counsel for the defendant is obliged to contend, and he does not contend, that mere mistake as to the quantity of land affords no ground of relief against a contract in the terms of the present one, however serious such mistake may be, and although we can readily see the contract would never have been made if the quantity had been made known. The convenience of such a rule has been insisted on, and in the denial of justice it certainly has the merit of simplicity. If the doctrine is true as broadly as stated, then there is one class of contracts to which the settled maxim that equity will relieve against mistake can have no application. Upon a careful examination of the cases cited, as well as upon principle, my conclusion is, that agreements of this description are not necessarily proof against the maxims which apply to all others." Then follows a review of the cases not alone of the state of New York and other states in the America Union but of England as well. The rule was announced that equity will rescind a contract for the sale of land for mutual mistake as to the quantity of land which the boundaries given in the contract contained, where the deficiency is material. "More or less," used in the contract in connection with the statement of the quantity, will not prevent the granting of such relief.Coordinating more closely the law and the facts in the instant case, we reach the following conclusions: This was not a contract of hazard. It was a sale in gross in which there was a mutual mistake as to the quantity of land sold and as to the amount of the standing crop. The mistake of fact as disclosed not alone by the terms of the contract but by the attendant circumstances, which it is proper to consider in order to throw light upon the intention of the parties, is, as it is sometimes expressed, the efficient cause of the concoction. The mistake with reference to the subject-matter of the contract is such that, at the option of the purchaser, it is rescindable. Without such mistake the agreement would not have been made and since this is true, the agreement is inoperative and void. It is not exactly a case of over reaching on the plaintiff's part, or of misrepresentation and deception, or of fraud, but is more nearly akin to a bilateral mistake for which relief should be granted. Specific performance of the contract can therefore not be allowed at the instance of the vendor.The ultimate result is to put the parties back in exactly their respective positions before they became involved in the negotiations and before accomplishment of the agreement. This was the decision of the trial judge and we think that decision conforms to the facts, the law, and the principles of equity.Judgment is affirmed, without prejudice to the right of the plaintiff to establish in this action in the lower court the amount of the rent of the land pursuant to the terms of the complaint during the time the land was in the possession of the defendant, and to obtain judgment against the defendant for that amount, with costs against the appellant. So ordered.Johnson, Avancea, Villamor and Romualdez, JJ., concur.Johns, J., concurs in the result.Street, J., dissents.

HEIRS OF WILLIAM SEVILLA, NAMELY: WILFREDO SEVILLA, WILSON SEVILLA, WILMA SEVILLA, WILLINGTON SEVILLA, AND WILLIAM SEVILLA, JR., HEIRS OF MARIA SEVILLA, NAMELY: AMADOR SEVILLA, JENO CORTES, VICTOR CORTES, MARICEL CORTES, ALELEI*CORTES AND ANJEI**CORTES,petitioners,vs.LEOPOLDO SEVILLA, PETER SEVILLA, AND LUZVILLA SEVILLA,respondents.YNARES-SANTIAGO,J.:One who alleges defect or lack of valid consent to a contract by reason of fraud or undue influence must establish by full, clear and convincing evidence such specific acts that vitiated a party's consent, otherwise, the latter's presumed consent to the contract prevails.1The instant petition for review seeks to set aside the September 26, 2000 Decision2of the Court of Appeals in CA-G.R. CV No. 48956, affirmingin totothe Decision3of the Regional Trial Court of Dipolog City, Branch 6, in Civil Case No. 4240 which declared,inter alia, the questioned Deed of DonationInter Vivosvalid and binding on the parties.The undisputed facts reveal that on December 10, 1973, Filomena Almirol de Sevilla died intestate leaving 8 children, namely: William, Peter, Leopoldo, Felipe, Rosa, Maria, Luzvilla, and Jimmy, all surnamed Sevilla. William, Jimmy and Maria are now deceased and are survived by their respective spouses and children.4Filomena Almirol de Sevilla left the following properties:PARCEL I:A parcel of land known as Lot No. 653 situated at General Luna St., Dipolog City, with an area of about 804 square meters, more or less, duly covered by Transfer Certificate of Title No. (T-6671)-1448 [in the name of Filomena Almirol de Sevilla, Honorata Almirol and Felisa Almirol] and assessed at P31,360.00 according to Tax Dec. No. 018-947;PARCEL II:A parcel of land known as Lot No. 3805-B situated at Olingan, Dipolog City, with an area of about 18,934 square meters, more or less, duly covered by Transfer Certificate of Title No. T-6672 and assessed at P5,890 according to Tax Dec. No. 009-761;PARCEL III:A parcel of land known as Lot No. 837-1/4 situated at Magsaysay Street, Dipolog City, with an area of about 880 square meters more or less, duly covered by Original Certificate of Title No. 0-6064 and assessed at P12,870.00 according to Tax Dec. No. 020-1078;PARCEL IV:A parcel of residential land known as Lot No. 1106-B-3 situated at Sta. Filomena, Dipolog City, with an area of 300 square meters, more or less, assessed at P3,150.00 according to Tax Dec. No. 006-317;Commercial building erected on Parcel I above-described; and residential building erected just at the back of the commercial building above-described and erected on Parcel I above-described;5Parcel I, Lot No. 653, is the paraphernal property of Filomena Almirol de Sevilla which she co-owned with her sisters, Honorata Almirol and Felisa Almirol,6who were both single and without issue. Parcels II, III and IV are conjugal properties of Filomena Almirol de Sevilla and her late husband Andres Sevilla.7When Honorata died in 1982, her 1/3 undivided share in Lot No. 653 was transmitted to her heirs, Felisa Almirol and the heirs of Filomena Almirol de Sevilla, who thereby acquired the property in the proportion of one-half share each.During the lifetime of Felisa and Honorata Almirol, they lived in the house of Filomena Almirol de Sevilla, together with their nephew, respondent Leopoldo Sevilla and his family. Leopoldo attended to the needs of his mother, Filomena, and his two aunts, Honorata and Felisa.8Felisa died on July 6, 1988.9Previous thereto, on November 25, 1985, she executed a last will and testament devising her 1/2 share in Lot No. 653 to the spouses Leopoldo Sevilla and Belen Leyson.10On August 8, 1986, Felisa executed another document denominated as "DonationInter Vivos" ceding to Leopoldo Sevilla her 1/2 undivided share in Lot No. 653, which was accepted by Leopoldo in the same document.11On September 3, 1986, Felisa Almirol and Peter Sevilla, in his own behalf and in behalf of the heirs of Filomena Almirol de Sevilla, executed a Deed of Extra-judicial Partition, identifying and adjudicating the 1/3 share of Honorata Almirol to the heirs of Filomena Almirol de Sevilla and to Felisa Almirol.12Thereafter, respondents Leopoldo, Peter and Luzvilla Sevilla obtained the cancellation of Transfer Certificate of Title No. (T-6671)-1448, over Lot No. 653, and the issuance of the corresponding titles to Felisa Almirol and the heirs of Filomena Almirol de Sevilla. However, the requested titles for Lot Nos. 653-A and 653-B, were left unsigned by the Register of Deeds of Dipolog City, pending submission by Peter Sevilla of a Special Power of Attorney authorizing him to represent the other heirs of Filomena Almirol de Sevilla.13On June 21, 1990, Felipe Sevilla, Rosa Sevilla, and the heirs of William, Jimmy and Maria, all surnamed Sevilla, filed the instant case against respondents Leopoldo Sevilla, Peter Sevilla and Luzvilla Sevilla, for annulment of the Deed of Donation and the Deed of Extrajudicial Partition, Accounting, Damages, with prayer for Receivership and for Partition of the properties of the late Filomena Almirol de Sevilla.14They alleged that the Deed of Donation is tainted with fraud because Felisa Almirol, who was then 81 years of age, was seriously ill and of unsound mind at the time of the execution thereof; and that the Deed of Extra-judicial Partition is void because it was executed without their knowledge and consent.15In their answer,16respondents denied that there was fraud or undue pressure in the execution of the questioned documents. They alleged that Felisa was of sound mind at the time of the execution of the assailed deeds and that she freely and voluntarily ceded her undivided share in Lot No. 653 in consideration of Leopoldo's and his family's love, affection, and services rendered in the past. Respondents further prayed that Parcels II, III, and IV be partitioned among the heirs of Filomena Almirol de Sevilla in accordance with the law on intestate succession.On December 16, 1994, a decision was rendered by the Regional Trial Court of Dipolog City, Zamboanga del Norte, Branch 6, upholding the validity of the Deed of Donation and declaring the Deed of Extra-judicial Partition unenforceable. The dispositive portion thereof, reads:WHEREFORE, IN VIEW OF THE FOREGOING, summing up the evidence for both the plaintiffs and the defendants, the Court hereby renders judgment:1) Declaring the questioned Deed of DonationInter Vivosvalid and binding, and, therefore, has the full force and effect of law;2) Declaring the questioned Deed of Extra-Judicial Partition as unenforceable as yet as against the other heirs, as it lacks the legal requisites of Special Power of Attorney or any other appropriate instrument to be executed by the other heirs who were not made parties thereto;3) Finding the parties herein entitled to the partition of Parcel II, III, IV as designated in the Complaint, in equal shares, and, as to Lot No. 653 designated as Parcel I, it shall be divided equally into two, between defendant Leopoldo Sevilla on one hand, and, collectively, the Heirs of William Sevilla, Heirs of Jimmy Sevilla, Heirs of Maria Sevilla, Felipe Sevilla, Leopoldo Sevilla, Peter Sevilla, Luzvilla Sevilla-Tan, on the other hand, as well as the two buildings thereon in proportionate values;4) Directing the parties, if they can agree, to submit herewith a project of partition, which shall designate the share which pertains to the heirs entitled thereto, that is, the particular and specific portions of the properties subject of the partition;5) Directing defendant Peter Sevilla to pay and/or collect from the parties the amounts corresponding to each one entitled or liable thereto, as recorded in the Statement of Accounts, except for defendant Leopoldo Sevilla who is found by the Court to have incurred only an overdraft of P5,742.98 and not P33,204.33 as earlier computed therein.6) Dismissing the plaintiffs' claim for damages, which is not proved with sufficient evidence, and defendants' counterclaim, on the same ground.7) With costsde officio.IT IS SO ORDERED.17Both parties appealed to the Court of Appeals. Petitioners contended that the Deed of Donation should be declared void and that Lot No. 653 should be divided equally among them. Respondents, on the other hand, posited that the trial court erred in declaring the Deed of Extra-judicial Partition unenforceable against the other heirs of Filomena Almirol de Sevilla who were not parties to said Deed.On September 26, 2000, the Court of Appeals affirmedin totothe assailed decision of the trial court.18Petitioners filed a motion for reconsideration but the same was denied on August 30, 2001.19Hence, the instant petition based on the following assignment of errors:THAT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING AS VOID AB INITIO THE DEED OF DONATION EXECUTED BY FELISA ALMIROL IN FAVOR OF RESPONDENT LEOPOLDO SEVILLA CEDING TO HIM ONE HALF PORTION OF LOT 653, DIPOLOG CADASTRE, IT HAVING BEEN EXECUTED WITH FRAUD, UNDUE PRESSURE AND INFLUENCE;THAT THE APPELLATE COURT GREATLY ERRED IN NOT ORDERING THE PARTITION OF LOT 653, DIPOLOG CADASTRE EQUALLY AMONG THE EIGHT (8) HEIRS OF FILOMENA, HONORATA AND FELISA, ALL SURNAMED ALMIROL.20To resolve the issue raised in the instant petition for review, the validity of the donationinter vivosexecuted by Felisa Almirol in favor of Leopoldo Sevilla must first be determined.Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another who accepts it.21Under Article 737 of the Civil Code, the donor's capacity shall be determined as of the time of the making of the donation. Like any other contract, an agreement of the parties is essential,22and the attendance of a vice of consent renders the donation voidable.23In the case at bar, there is no question that at the time Felisa Almirol executed the deed of donation she was already the owner of 1/2 undivided portion of Lot No. 653. Her 1/3 undivided share therein was increased by 1/2 when she and Filomena inherited the 1/3 share of their sister Honorata after the latter's death. Hence, the 1/2 undivided share of Felisa in Lot No. 653 is considered a present property which she can validly dispose of at the time of the execution of the deed of donation.24Petitioners, however, insist that respondent Leopoldo Sevilla employed fraud and undue influence on the person of the donor. This argument involves appreciation of the evidence.25The settled rule is that factual findings of the trial court, if affirmed by the Court of Appeals, are entitled to great respect.26There are exceptional circumstances when findings of fact of lower courts may be set aside27but none is present in the case at bar. Indeed, neither fraud nor undue influence can be inferred from the following circumstance alleged by the petitioners, to wit A. That Felisa Almirol lived with respondent Leopoldo Sevilla in the residential house owned by petitioners and respondents;B. That the old woman Felisa Almirol was being supported out of the rentals derived from the building constructed on the land which was a common fund. . . .C. That when Felisa Almirol was already 82 years old, he [Leopoldo Sevilla] accompanied her in the Office of Atty. Vic T. Lacaya, Sr., for the purpose of executing her last will and testament . . .D. That in the last will and testament executed by Felisa Almirol, she had devised in favor of respondent Leopoldo Sevilla one-half of the land in question;E. That respondent Leopoldo Sevilla not contented with the execution by Felisa Almirol of her last will and testament, had consulted a lawyer as to how he will be able to own the land immediately;F. That upon the advice of Atty. Helen Angeles, Clerk of Court of the Regional Trial Court of Zamboanga del Norte, Dipolog City, Felisa Almirol executed a Deed of Donation, hence, the questioned Deed of Donation executed in his favor;G. That the subject matter of the Deed of Donation was the one-half portion of Lot 653, Dipolog Cadastre, which was willed by Felisa Almirol, in favor of respondent Leopoldo Sevilla in her last will and testament;H. That at the time of the execution of the Deed of Donation, Lot No. 653, Dipolog Cadastre, was not yet partitioned between petitioners and respondents they being heirs of the late Filomena and Honorata, all surnamed Almirol;I. That after the execution of the Deed of Donation, respondent Peter Sevilla and the late Felisa Almirol were the only ones who executed the Deed of Extra-judicial Partition over Lot 653, Dipolog Cadastre, the petitioners were not made parties in the said Deed of Extrajudicial Partition;J. That on the basis of the Deed of Extrajudicial Partition and Deed of Donation, respondent Leopoldo Sevilla caused the subdivision survey of Lot 653, Dipolog Cadastre, dividing the same into two (2) lots, adjudicating one-half of the lot in his favor and the other half in favor of respondents Peter Sevilla and Luzvilla Sevilla, and to respondent Leopoldo Sevilla himself;K. That only two persons knew the actual survey of the land, petitioner Felipe Sevilla and respondent Leopoldo Sevilla himself, the rest of the co-owners were not even notified;L. That on the basis of the Extrajudicial Partition, Deed of Donation, the approved subdivision plan, respondent Leopoldo Sevilla filed a petition for issuance of the corresponding titles for the two lots, but the Register of Deeds of Dipolog City refused to issue the corresponding titles for the two lots to respondent Leopoldo Sevilla so that up to this moment . . . the two titles were left unsigned by the Register of Deeds.28There is fraud when, through the insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to.29There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress.30Ei incumbit probatio qui dicit, non qui negat. He who asserts, not he who denies, must prove. We have consistently applied the ancient rule that if the plaintiff, upon whom rests the burden of proving his cause of action, fails to show in a satisfactory manner facts on which he bases his claim, the defendant is under no obligation to prove his exception or defense.31In the instant case, the self-serving testimony of the petitioners are vague on what acts of Leopoldo Sevilla constituted fraud and undue influence and on how these acts vitiated the consent of Felisa Almirol. Fraud and undue influence that vitiated a party's consent must be established by full, clear and convincing evidence, otherwise, the latter's presumed consent to the contract prevails.32Neither does the fact that the donation preceded the partition constitute fraud. It is not necessary that partition should first be had because what was donated to Leopoldo was the 1/2 undivided share of Felisa in Lot No. 653.Moreover, petitioners failed to show proof why Felisa should be held incapable of exercising sufficient judgment in ceding her share to respondent Leopoldo.33As testified by the notary public who notarized the Deed of Donation, Felisa confirmed to him her intention to donate her share in Lot No. 653 to Leopoldo. He stressed that though the donor was old, she was of sound mind and could talk sensibly. Significantly, there is nothing in the record that discloses even an attempt by petitioners to rebut said declaration of the notary public.Clearly, therefore, the courts below did not err in sustaining the validity of the deed of donation.Anent the Deed of Extra-judicial Partition, we find that the same is voidab initioand not merely unenforceable. InDelos Reyes v. Court of Appeals,34which is a case involving the sale of a lot by a person who is neither the owner nor the legal representative, we declared the contract voidab initio. It was held that one of the requisites of a valid contract under Article 1318 of the Civil Code is the consent and the capacity to give consent of the parties to the contract. The legal capacity of the parties is an essential element for the existence of the contract because it is an indispensable condition for the existence of consent. There is no effective consent in law without the capacity to give such consent. In other words, legal consent presupposes capacity. Thus, there is said to beno consent, and consequently,no contractwhen the agreement is entered into by one in behalf of another who has never given him authorization therefor unless he has by law a right to represent the latter.35In the case at bar, at the time Felisa executed the deed of extra-judicial partition dividing the share of her deceased sister Honorata between her and the heirs of Filomena Almirol de Sevilla, she was no longer the owner of the 1/2 undivided portion of Lot No. 653, having previously donated the same to respondent Leopoldo Sevilla who accepted the donation in the same deed. A donationinter vivos, as in the instant case, is immediately operative and final.36As a mode of acquiring ownership, it results in an effective transfer of title over the property from the donor to the donee and the donation is perfected from the moment the donor knows of the acceptance by the donee. And once a donation is accepted, the donee becomes the absolute owner of the property donated.Evidently, Felisa did not possess the capacity to give consent to or execute the deed of partition inasmuch as she was neither the owner nor the authorized representative of respondent Leopoldo to whom she previously transmitted ownership of her undivided share in Lot No. 653. Considering that she had no legal capacity to give consent to the deed of partition, it follows that there is no consent given to the execution of the deed, and therefore, there is no contract to speak of. As such, the deed of partition is voidab initio, hence, not susceptible of ratification.Nevertheless, the nullity of the deed of extra-judicial partition will not affect the validity of the donationinter vivosceding to respondent Leopoldo Sevilla the 1/2 undivided share of Felisa Almirol in Lot No. 653. Said lot should therefore be divided as follows: 1/2 shall go to respondent Leopoldo Sevilla by virtue of the deed of donation, while the other half shall be divided equally among the heirs of Filomena Almirol de Sevilla including Leopoldo Sevilla, following the rules on intestate succession.Finally, we note that the name of Rosa Sevilla, daughter of Filomena Almirol de Sevilla, and one of the plaintiffs herein, was omitted in the dispositive portion of the trial court's decision.37Her name should therefore be included in the dispositive portion as one of the heirs entitled to share in the properties of the late Filomena Almirol de Sevilla.WHEREFORE, in view of all the foregoing, the Decision of the Court of Appeals in CA-G.R. CV No. 48956, affirmingin totothe Decision of the Regional Trial Court of Dipolog City, Branch 6, in Civil Case No. 4240, is AFFIRMED with MODIFICATION. The Deed of Extra-judicial Partition dated September 3, 1986 is declared void, and the name of Rosa Sevilla is ordered included in the dispositive portion of the trial court's judgment.SO ORDERED.Davide, Jr., C .J ., Vitug, Carpio and Azcuna, JJ .,concur.

G.R. No. 82670 September 15, 1989DOMETILA M. ANDRES, doing business under the name and style "IRENE'S WEARING APPAREL,"petitioner,vs.MANUFACTURERS HANOVER & TRUST CORPORATION and COURT OF APPEALS,respondents.Roque A. Tamayo for petitioner.Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for private respondent.CORTES,J.:Assailed in this petition for review oncertiorariis the judgment of the Court of Appeals, which, applying the doctrine ofsolutio indebiti, reversed the decision of the Regional Trial Court, Branch CV, Quezon City by deciding in favor of private respondent.Petitioner, using the business name "Irene's Wearing Apparel," was engaged in the manufacture of ladies garments, children's wear, men's apparel and linens for local and foreign buyers. Among its foreign buyers was Facets Funwear, Inc. (hereinafter referred to as FACETS) of the United States.In the course of the business transaction between the two, FACETS from time to time remitted certain amounts of money to petitioner in payment for the items it had purchased. Sometime in August 1980, FACETS instructed the First National State Bank of New Jersey, Newark, New Jersey, U.S.A. (hereinafter referred to as FNSB) to transfer $10,000.00 to petitioner via Philippine National Bank, Sta. Cruz Branch, Manila (hereinafter referred to as PNB).Acting on said instruction, FNSB instructed private respondent Manufacturers Hanover and Trust Corporation to effect the above- mentioned transfer through its facilities and to charge the amount to the account of FNSB with private respondent. Although private respondent was able to send a telex to PNB to pay petitioner $10,000.00 through the Pilipinas Bank, where petitioner had an account, the payment was not effected immediately because the payee designated in the telex was only "Wearing Apparel." Upon query by PNB, private respondent sent PNB another telex dated August 27, 1980 stating that the payment was to be made to "Irene's Wearing Apparel." On August 28, 1980, petitioner received the remittance of $10,000.00 through Demand Draft No. 225654 of the PNB.Meanwhile, on August 25, 1980, after learning about the delay in the remittance of the money to petitioner, FACETS informed FNSB about the situation. On September 8, 1980, unaware that petitioner had already received the remittance, FACETS informed private respondent about the delay and at the same time amended its instruction by asking it to effect the payment through the Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB) instead of PNB.Accordingly, private respondent, which was also unaware that petitioner had already received the remittance of $10,000.00 from PNB instructed the PCIB to pay $10,000.00 to petitioner. Hence, on September 11, 1980, petitioner received a second $10,000.00 remittance.Private respondent debited the account of FNSB for the second $10,000.00 remittance effected through PCIB. However, when FNSB discovered that private respondent had made a duplication of the remittance, it asked for a recredit of its account in the amount of $10,000.00. Private respondent complied with the request.Private respondent asked petitioner for the return of the second remittance of $10,000.00 but the latter refused to pay. On May 12, 1982 a complaint was filed with the Regional Trial Court, Branch CV, Quezon City which was decided in favor of petitioner as defendant. The trial court ruled that Art. 2154 of the New Civil Code is not applicable to the case because the second remittance was made not by mistake but by negligence and petitioner was not unjustly enriched by virtue thereof [Record, p. 234]. On appeal, the Court of Appeals held that Art. 2154 is applicable and reversed the RTC decision. The dispositive portion of the Court of Appeals' decision reads as follows:WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE and another one entered in favor of plaintiff-appellant and against defendant-appellee Domelita (sic) M. Andres, doing business under the name and style "Irene's Wearing Apparel" to reimburse and/or return to plaintiff-appellant the amount of $10,000.00, its equivalent in Philippine currency, with interests at the legal rate from the filing of the complaint on May 12, 1982 until the whole amount is fully paid, plus twenty percent (20%) of the amount due as attomey's fees; and to pay the costs.With costs against defendant-appellee.SO ORDERED. [Rollo, pp. 29-30.]Thereafter, this petition was filed. The sole issue in this case is whether or not the private respondent has the right to recover the second $10,000.00 remittance it had delivered to petitioner. The resolution of this issue would hinge on the applicability of Art. 2154 of the New Civil Code which provides that:Art. 2154. If something received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.This provision is taken from Art. 1895 of the Spanish Civil Code which provided that:Art. 1895. If a thing is received when there was no right to claim it and which, through an error, has been unduly delivered, an obligation to restore it arises.InVelez v. Balzarza, 73 Phil. 630 (1942), the Court, speaking through Mr. Justice Bocobo explained the nature of this article thus:Article 1895 [now Article 2154] of the Civil Code abovequoted, is therefore applicable. This legal provision, which determines the quasi-contract of solution indebiti, is one of the concrete manifestations of the ancient principle that no one shall enrich himself unjustly at the expense of another. In the Roman Law Digest the maxim was formulated thus:"Jure naturae acquum est, neminem cum alterius detrimento et injuria fieri locupletiorem."And the Partidas declared:"Ninguno non deue enriquecerse tortizeramente con dano de otro."Such axiom has grown through the centuries in legislation, in the science of law and in court decisions. The lawmaker has found it one of the helpful guides in framing statutes and codes. Thus, it is unfolded in many articles scattered in the Spanish Civil Code. (See for example, articles, 360, 361, 464, 647, 648, 797, 1158, 1163, 1295, 1303, 1304, 1893 and 1895, Civil Code.) This time-honored aphorism has also been adopted by jurists in their study of the conflict of rights. It has been accepted by the courts, which have not hesitated to apply it when the exigencies of right and equity demanded its assertion. It is a part of that affluent reservoir of justice upon which judicial discretion draws whenever the statutory laws are inadequate because they do not speak or do so with a confused voice. [at p. 632.]For this article to apply the following requisites must concur: "(1) that he who paid was not under obligation to do so; and, (2) that payment was made by reason of an essential mistake of fact" [City of Cebu v. Piccio, 110 Phil. 558, 563 (1960)].It is undisputed that private respondent delivered the second $10,000.00 remittance. However, petitioner contends that the doctrine ofsolutio indebiti, does not apply because its requisites are absent.First, it is argued that petitioner had the right to demand and therefore to retain the second $10,000.00 remittance. It is alleged that even after the two $10,000.00 remittances are credited to petitioner's receivables from FACETS, the latter allegedly still had a balance of $49,324.00. Hence, it is argued that the last $10,000.00 remittance being in payment of a pre-existing debt, petitioner was not thereby unjustly enriched.The contention is without merit.The contract of petitioner, as regards the sale of garments and other textile products, was with FACETS. It was the latter and not private respondent which was indebted to petitioner. On the other hand, the contract for the transmittal of dollars from the United States to petitioner was entered into by private respondent with FNSB. Petitioner, although named as the payee was not privy to the contract of remittance of dollars. Neither was private respondent a party to the contract of sale between petitioner and FACETS. There being no contractual relation between them, petitioner has no right to apply the second $10,000.00 remittance delivered by mistake by private respondent to the outstanding account of FACETS.Petitioner next contends that the payment by respondent bank of the second $10,000.00 remittance was not made by mistake but was the result of negligence of its employees. In connection with this the Court of Appeals made the following finding of facts:The fact that Facets sent only one remittance of $10,000.00 is not disputed. In the written interrogatories sent to the First National State Bank of New Jersey through the Consulate General of the Philippines in New York, Adelaide C. Schachel, the investigation and reconciliation clerk in the said bank testified that a request to remit a payment for Facet Funwear Inc. was made in August, 1980. The total amount which the First National State Bank of New Jersey actually requested the plaintiff-appellant Manufacturers Hanover & Trust Corporation to remit to Irene's Wearing Apparel was US $10,000.00. Only one remittance was requested by First National State Bank of New Jersey as per instruction of Facets Funwear (Exhibit "J", pp. 4-5).That there was a mistake in the second remittance of US $10,000.00 is borne out by the fact that both remittances have the same reference invoice number which is 263 80. (Exhibits "A-1- Deposition of Mr. Stanley Panasow" and "A-2-Deposition of Mr. Stanley Panasow").Plaintiff-appellant made the second remittance on the wrong assumption that defendant-appellee did not receive the first remittance of US $10,000.00. [Rollo, pp. 26-27.]It is evident that the claim of petitioner is anchored on the appreciation of the attendant facts which petitioner would have this Court review. The Court holds that the finding by the Court of Appeals that the second $10,000.00 remittance was made by mistake, being based on substantial evidence, is final and conclusive. The rule regarding questions of fact being raised with this Court in a petition forcertiorariunder Rule 45 of the Revised Rules of Court has been stated in Remalante v. Tibe, G.R. No. 59514, February 25, 1988, 158 SCRA 138, thus:The rule in this jurisdiction is that only questions of law may be raised in a petition for certiorari under Rule 45 of the Revised Rules of Court. "The jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive" [Chan v. Court of Appeals, G.R. No. L-27488, June 30, 1970, 33 SCRA 737, reiterating a long line of decisions]. This Court has emphatically declared that "it is not the function of the Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that might have been committed by the lower court" [Tiongco v. De la Merced, G.R. No. L-24426, July 25, 1974, 58 SCRA 89; Corona v. Court of Appeals, G.R. No.L-62482, April 28, 1983, 121 SCRA 865; Baniqued v. Court of Appeals, G. R. No.L-47531, February 20, 1984, 127 SCRA 596]. "Barring, therefore, a showing that the findings complained of are totally devoid of support in the record, or that they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand, for this Court is not expected or required to examine or contrast the oral and documentary evidence submitted by the parties" [Santa Ana, Jr. v. Hernandez, G.R. No. L-16394, December 17, 1966, 18 SCRA 9731. [at pp. 144-145.]Petitioner invokes the equitable principle that when one of two innocent persons must suffer by the wrongful act of a third person, the loss must be borne by the one whose negligence was the proximate cause of the loss.The rule is that principles of equity cannot be applied if there is a provision of law specifically applicable to a case [Phil. Rabbit Bus Lines, Inc. v. Arciaga, G.R. No. L-29701, March 16, 1987,148 SCRA 433; Zabat, Jr. v. Court of Appeals, G.R. No. L36958, July 10, 1986, 142 SCRA 587; Rural Bank of Paranaque, Inc. v. Remolado, G.R. No. 62051, March 18, 1985, 135 SCRA 409; Cruz v. Pahati, 98 Phil. 788 (1956)]. Hence, the Court in the case ofDe Garcia v. Court of Appeals,G.R. No.L-20264, January 30, 1971, 37 SCRA 129, citingAznar v. Yapdiangco,G.R. No. L-18536, March 31, 1965, 13 SCRA 486, held:... The common law principle that where one of two innocent persons must suffer by a fraud perpetrated by another, the law imposes the loss upon the party who, by his misplaced confidence, has enabled the fraud to be committed, cannot be applied in a case which is covered by an express provision of the new Civil Code, specifically Article 559. Between a common law principle and a statutory provision, the latter must prevail in this jurisdiction. [at p. 135.]Having shown that Art. 2154 of the Civil Code, which embodies the doctrine ofsolutioindebiti, applies in the case at bar, the Court must reject the common law principle invoked by petitioner.Finally, in her attempt to defeat private respondent's claim, petitioner makes much of the fact that from the time the second $10,000.00 remittance was made, five hundred and ten days had elapsed before private respondent demanded the return thereof. Needless to say, private respondent instituted the complaint for recovery of the second $10,000.00 remittance well within the six years prescriptive period for actions based upon a quasi-contract [Art. 1145 of the New Civil Code].WHEREFORE, the petition is DENIED and the decision of the Court of Appeals is hereby AFFIRMED.SO ORDERED.Fernan, C.J., Gutierrez, Jr. and Bidin, JJ., concur.Feliciano, J., is on leave.

G.R. No. 126013 February 12, 1997SPOUSES HEINZRICH THEIS AND BETTY THEIS,petitioners,vs.HONORABLE COURT OF APPEALS, HONORABLE ELEUTERIO GUERRERO, ACTING PRESIDING JUDGE, BRANCH XVIII, REGIONAL TRIAL COURT, TAGAYTAY CITY, CALSONS DEVELOPMENT CORPORATION,respondents.HERMOSISIMA, JR.,J.:In the instant petition, we shall have the occasion to apply the concept of mistake in the annulment of contracts.Private respondent Calsons Development Corporation is the owner of three (3) adjacent parcels of land covered by Transfer Certificate of Title (TCT) Nos. 15515 (parcel no. 1 in the location map), 15516 (parcel no. 2) and 15684 (parcel no. 3), with the area of 1,000 square meters, 226 square meters and 1,000 square meters, respectively. All three parcels of land are situated along Ligaya Drive, Barangay Francisco, Tagaytay City. Adjacent to parcel no. 3, which is the lot covered by TCT No. 15684, is a vacant lot denominated as parcel no. 4.In 1985, private respondent constructed a two-storey house on parcel no. 3. The lots covered by TCT No. 15515 and TCT No. 15516, which are parcel no. 1 and parcel no. 2, respectively, remained idle.However, in a survey conducted in 1985, parcel no. 3, where the two-storey house stands, was erroneously indicated to be covered not by TCT No. 15684 but by TCT No. 15515, while the two idle lands (parcel nos. 1 and 2) were mistakenly surveyed to be located on parcel no. 4 instead (which was not owned by private respondent) and covered by TCT Nos. 15516 and 15684.On October 26, 1987, unaware of the mistake by which private respondent appeared to be the owner of parcel no. 4 as indicated in the erroneous survey, and based on the erroneous information given by the surveyor that parcel no. 4 is covered by TCT No. 15516 and 15684, private respondent, through its authorized representative, one Atty. Tarcisio S. Calilung, sold said parcel no. 4 to petitioners.Upon execution of the Deed of Sale, private respondent delivered TCT Nos. 15516 and 15684 to petitioners who, on October 28, 1987, immediately registered the same with the Registry of Deeds of Tagaytay City. Thus, TCT Nos. 17041 and 17042 in the names of the petitioners were issued.Indicated on the Deed of Sale as purchase price was the amount of P130,000.00. The actual price agreed upon and paid, however, was P486,000.00. This amount was not immediately paid to private respondent; rather, it was deposited in escrow in an interest-bearing account in its favor with the United Coconut Planters Bank in Makati City. The P486,000.00 in escrow was released to, and received by, private respondent on December 4, 1987.Thereafter, petitioners did not immediately occupy and take possession of the two (2) idle parcels of land purchased from private respondent. Instead, petitioners went to Germany.In the early part of 1990, petitioners returned to the Philippines. When, they went to Tagaytay to look over the vacant lots and to plan the construction of their house thereon, they discovered that parcel no. 4 was owned by another person. They also discovered that the lots actually sold to them were parcel nos. 2 and 3 covered by TCT Nos. 15516 and 15684. respectively. Parcel no. 3, however, could not have been sold to the petitioners by the private respondents as a two-storey house, the construction cost of which far exceeded the price paid by the petitioners, had already been built thereon even prior to the execution of the contract between the disputing parties.Petitioners insisted that they wanted parcel no. 4, which is the idle lot adjacent to parcel no. 3, and persisted in claiming that it was parcel no. 4 that private respondent sold to them. However, private respondent could not have possibly sold the same to them for it did not own parcel no. 4 in the first place.The mistake in the identity of the lots is traceable to the erroneous survey conducted in 1985.To remedy the mistake, private respondent offered parcel nos. 1 and 2 covered by TCT Nos. 15515 and 15516, respectively, as these two were precisely the two vacant lots which private respondent owned and intended to sell when it entered into the transaction with petitioners. Petitioners adamantly rejected the good faith offer. They refused to yield to reason and insisted on taking parcel no. 3, covered by TCT No. 155864 and upon which a two-storey house stands, in addition to parcel no. 2, covered by TCT No. 15516, on the ground that these TCTs have already been cancelled and new ones issued in their name.Such refusal of petitioners prompted private respondent to make another offer, this time, the return of an amount double the price paid by petitioners. Petitioners still refused and stubbornly insisted in their stand.Private respondent was then compelled to file an action for annulment of deed of sale and reconveyance of the properties subject thereof1in the Regional Trial Court.2The trial court rendered judgment in favor of private respondent. Identifying the core issue in the instant controversy to be the voidability of the contract of sale between petitioners and private respondent on the ground of mistake, the trial court annulled said contract of sale after finding that there was indeed a mistake in the identification of the parcels of land intended to be the subject matter of said sale. The trial court ratiocinated:Meeting head-on the issue of alleged mistake in the object of the same, defendants in their answer averred that they relied on the technical descriptions of TCT Nos. 15516 and 15684 appearing in the deed of sale.. . .A resolution of the conflicting claims of the parties to the instant controversy calls for an inquiry on their real intent relative to the identity of the parcels which plaintiff intended to sell to defendants and which the latter in turn, intended to buy from the former. For, the Court cannot ignore the dictates of logic and common sense which, ordinarily, could not push a person to sell to another, a property which the former does not own in the first place, for fear of adverse consequences. The vendee, following the same reasoning, would not buy a thing unless he is totally certain that the seller is the real owner of the thing offered for sale. It is equally true that when one sells or buys a real property, he either sells or buys the property as he sees it, in its actual setting and by its physical metes and bounds, and not be the mere lot number assigned to the same property in the certificate of title or in any document. And, when a buyer of real property decides to purchase from his seller, he is ordinarily bound by prudence to ascertain the true nature, identity or character of the property that he intends to buy and ascertain the title of his vendor before he parts with his money. It is quite obvious that the foregoing precepts and precautions were observed by the parties in the case at bar as there is no question at all that he sale in question was consummated through the initiative of Mrs. Gloria Contreras and then Vice-Mayor Benjamin Erni . . . both brokers of the sale who, after a chance meeting with defendants at the Taal Vista Lodge Hotel prior to the sale of plaintiffs parcels, brought defendants to the vicinity where plaintiffs three (3) adjacent parcels of land are located and pointed to defendants the two (2) vacant parcels right beside plaintiffs house. It is also undisputed that when defendants intimated to the brokers their desire to buy the vacant lots pointed to them when they visited the same place, they were brought to plaintiffs representative, Tarcisio S. Calilung, at the latter's office in Makati where the parties discussed the terms of the sale.The Court notes further from the records that defendants' desire to buy vacant lots from plaintiff is not only confirmed by the testimony of Gloria Contreras and the ocular inspection conducted by the court but by defendant Betty Theis herself when the latter testified as follows:"COURT:Q. Why, what was the lot that you intended to buy?A. The right side of the house, Your Honor." (TSN of November 8, 1991, page 19)Similarly, in answer to a question propounded to the same defendant by their counsel, she stated that "ATTY. ROSALES:Q. In other words, the titles delivered to you were not the titles covering the right side of the house?A No, sir." (Ibid., page 20)It is relevant to mention that when the defendants attempted to take possession of the parcels of land they bought from the plaintiff on which they intended to construct their house after their return from a foreign sojourn, they admittedly wanted to take that vacant area, which as herein shown, turns out to be a property not owned by plaintiff. From this act of the defendants, a clear meaning is shown. Defendants themselves, knew right from the beginning that what they intended to buy was that vacant lot, not the lot where plaintiffs house stands, covered by TCT No. 15684 which was wrongly mentioned as one of the objects of the sale. . . .The fact that the Deed of Sale subsequently executed by plaintiff and the defendants on October 27, 1987 covers the parcel of land where plaintiffs two- storey house was constructed will clearly reflect a situation that is totally different from what defendants had intended to buy from the plaintiff viz-a-viz [sic] the latter's intention to sell its two (2) vacant lots to defendants. Notwithstanding defendants' claim that it was not possible for plaintiffs representative not to be familiar with its properties, the acts and circumstances established in this case would clearly show, and this Court is convinced, that the inclusion of the parcel where plaintiffs house is constructed is solely attributable to a mistake in the object of the sale between the parties. This mistake, obviously, was made, on the part of plaintiffs representative when the latter mistook the vacant lot situated on the right side of plaintiffs house as its vacant parcels of land when its vacant lots are actually situated on the left side of the same house. Indeed, such mistake on plaintiffs part appears to be tragic as it turned out later that the vacant lot on the right side of plaintiffs house did not belong to plaintiff. Worse, is the fact that what was conveyed to defendants under the deed of sale was the parcel where plaintiff s house already stood at the time of the sale. This, definitely, is not what the parties intended.. . . Going by the facts established by defendants' evidence, it is clear thatdefendants did not intend to buy the parcel of land where plaintiffs house stood as defendant Betty Theis declared in her testimony that they wanted to buy the parcel at the right side of plaintiffs house where she and her husband would construct their house (TSN of June 4 1991, page 56).Neither can this Court accept the hypothesis that plaintiff intended to sell that parcel where its house was already constructed for if this was its true intention. it would not sell its two (2) lots at the price of P486,000.00 which is way below the costs of its construction of P1,500,000.00.The law itself explicitly recognizes that consent of the parties is one of the essential elements to the validity of the contract and where consent is given through mistake, the validity of the contractual relations between the parties is legally impaired.As earlier stated, the facts obtaining in the case at bar undoubtedly show that when defendants bought the properties of plaintiff, they intended to buy the vacant lots owned by the latter. As the sale that was finally consummated by the parties had covered the parcel where plaintiffs house was constructed even before the sale took place, this Court can safely assume that the deed of sale executed by the parties did not truly express their true intention. In other words,the mistake or error on the subject of the sale in question appears to be substantial as the object of the same transaction is different from that intended by the parties. This fiasco could have been cured and the pain and travails of this litigation avoided,had parties agreed to a reformation of the deed of sale.But.as shown by the sequence of events occurring after the sale was consummated. and the mistake was discovered. the defendants refused, insisting that they wanted the vacant lots on the right side of plaintiffs house. which was impossible the vacant lots on the right side for plaintiff to do, as said vacant lots were not of its own dominion.3[Emphasis ours]Aggrieved by the decision of the trial court, petitioners sought itsreversal4from respondent Court of Appeals5. Respondent court, however, did not find the appeal meritorious and accordingly affirmed6the trial court decision. Ruled the respondent appellate court:There is no doubt that when defendants-appellants attempted to take physical possession of Parcel No. 4 in May, 1990, they were prevented by the true owner thereof from taking possession of said land. To clear the matter, plaintiff-appellee hired a new surveyor who revealed in his survey that Parcel No. 4 is not included in plaintiff-appellee's Transfer Certificates of Title from which said plaintiff-appellee mistakenly offered defendants-appellants said Parcel No. 4. Realizing its mistake, plaintiff- appellee offered defendants-appellants Parcels Nos. 1 and 2 under the same Transfer Certificates of Title or the reimbursement of the purchase price in double amount. But defendants-appellants insisted this time to acquire Parcel No. 3 wherein plaintiff-appellee had already a house, and was not the object of the sale.Said Parcel No. 3 cannot be the object of the sale between the parties as plaintiff-appellee's house already stands in the said area even before defendants-appellants had chosen Parcel No. 4 which was described to be on the right side of said plaintiff-appellee's house in Parcel No. 3. There is no dispute that defendants-appellants wanted to buy Parcel No. 4 as testified to by defendant-appellant Petty Theis, herself (p. 19, tsn, Nov. 8, 1991), which lot turned out to be outside of the Transfer Certificates of Title of plaintiff-appellee. Defendants-appellants cannot now insist on Parcel No. 3 as the same was not the object of the sale between the parties.Clearly, therefore.there was honest mistake on the part of Plaintiff- appellee in the sale of Parcel No. 4 to defendants-appellantswhich plaintiff- appellee tried to remedy by offering defendants-appellant instead his Parcels Nos. 1 or 2, or reimbursement of the purchase price in double amount.7[Emphasis ours]We find that respondent court correctly affirmed the findings and conclusions of the trial court in annulling the deed of sale as the former are supported by evidence and the latter are in accordance with existing law and jurisprudence.Art. 1390 of the New Civil Code provides:Art. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties:(1) . . .(2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence, or fraud.xxx xxx xxxIn the case at bar, the private respondent obviously committed an honest mistake in selling parcel no. 4. As correctly noted by the Court of Appeals, it is quite impossible for said private respondent to sell the lot in question as the same is not owned by it. The good faith of the private respondent is evident in the fact that when the mistake was discovered, it immediately offered two other vacant lots to the petitioners or to reimburse them with twice the amount paid. That petitioners refused either option left the private respondent with no other choice but to file an action for the annulment of the deed of sale on the ground of mistake. As enunciated in the case of Mariano vs. Court of Appeals:8A contract may be annulled where the consent of one of the contracting parties was procured by mistake, fraud, intimidation, violence, or undue influence.Art. 1331 of the New Civil Code provides for the situations whereby mistake may invalidate consent. It states:Art. 1331. In order that mistake may invalidate consent, it should refer to the substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into the contract.Tolentino9explains that the concept of error in this article must include both ignorance, which is the absence of knowledge with respect to a thing, and mistake properly speaking, which is a wrong conception about said thing, or a belief in the existence of some circumstance, fact, or event, which in reality does not exist. In both cases, there is a lack of full and correct knowledge about the thing. The mistake committed by the private respondent in selling parcel no. 4 to the petitioners falls within the second type. Verily, such mistake invalidated its consent and as such, annulment of the deed of sale is proper.The petitioners cannot be justified in their insistence that parcel no. 3, upon which private respondent constructed a two-storey house, be given to them in lieu of parcel no. 4. The cost of construction in 1985 for the said house (P1,500,000.00) far exceeds the amount paid by the petitioners to the private respondent (P486,000.00). Moreover, the trial court, in questioning private respondent's witness, Atty. Tarciso Calilung (who is also its authorized representative) clarified that parcel no. 4, the lot mistakenly sold, was a vacant lot:10COURT: What property did you point to them?A. I pointed to parcel No. 4, as appearing in the sketch.COURT: Parcel No. 4 is a vacant lot?A. Yes, your Honor.COURT: So, there was no house on that lot?A. There was no house. There were pineapple crops existing on the property.COURT: So, you are telling the Court that the intended lot is vacant lot or Parcel 4?A. Yes, your Honor.Thus, to allow the petitioners to take parcel no. 3 would be to countenance unjust enrichment. Considering that petitioners intended at the outset to purchase a vacant lot, their refusal to accept the offer of the private respondent to give them two (2) other vacant lots in exchange, as well as their insistence on parcel no. 3, which is a house and lot, is manifestly unreasonable. As held by this Court in the case ofSecurity Bank and Trust Company v.Court of Appeals11:Hence, to allow petitioner bank to acquire the constructed building at a price far below its actual construction cost would undoubtedly constitute unjust enrichment for the bank to the prejudice of the private respondent. Such unjust enrichment, as previously discussed, is not allowed by law.WHEREFORE, the petition is hereby DISMISSED and the decision of the Court Appeals in CA-G.R. 47000 dated May 31, 1996 AFFIRMED. Costs against the petitioner.SO ORDERED.Padilla, Belosillo, Vitug and Kapunan, JJ., concur.

G.R. No. L-10462 March 16, 1916ANDREA DUMASUG,plaintiff -appellee,vs.FELIX MODELO,defendant-appellant.Fortunato Borromeo Veloso for appellant.Tomas Alonso for appellee.TORRES,J.:An appeal raised, by bill of exceptions, by counsel for defendant from the judgment of September 21, 1914, in which the Court of First Instance of Cebu held to be null and void the document, marked as Exhibit 1, executed by the plaintiff Andrea Dumasug, by virtue whereof defendant claims that the lands and carabao, the subject matter of the complaint, were conveyed to him. The said judgment further declared the plaintiff to be the exclusive owner of said lands; ordered defendant to deliver and restore the same to the plaintiff and, moreover, to pay her the sum of P120, the value of her carabao unlawfully sold by him, and likewise P75 as rent for the use and occupation of the lands in question during the time they were in defendant's possession, and to pay the costs.On June 17, 1912, counsel for Andrea Dumasug filed a written complaint in the Court of First Instance of Cebu, in which he alleged that about the month of November, 1911, defendant persuaded plaintiff to sign a document by falsely and maliciously making her believe that it contained an engagement on plaintiff's part to pay defendant a certain sum of money as expresses occasioned the latter by reason of a lawsuit in which plaintiff Dumasug was one of the parties and was protected and aided by defendant; that this document, plaintiff, who does not know how to write, signed by affixing her mark thereto, believing in good faith that defendant had told her the truth and that said document referred to the expenses incurred by defendant; but that three months after the execution of said document, defendant took possession of a carabao belonging to plaintiff and also of two parcels of land, likewise belonging to her, situated in the barrio of Katang, pueblo of Argao, Cebu, the area and boundaries of which are specified in the complaint, and notified plaintiff that she had conveyed to him by absolute sale said parcels of land and the plow carabao; that in spite of plaintiff's opposition and protests, defendant took possession of said property and, up to the date of the complaint, continued to hold possession thereof and to enjoy the products of the lands and of the labor of the carabao; and that, by reason of such acts, defendant had caused loss and damage to plaintiff in the sum of P1,000. Said counsel therefore prayed the court to render judgment by declaring null and void and of no value whatever the alleged contract of purchase and sale of the carabao and the two parcels of land described in the complaint, to order defendant to restore to plaintiff said work animal and lands, and, besides, to pay her the sum of P1,000 for the loss and damage caused her, in addition to the costs of the suit.The demurrer to the aforementioned complaint having been overruled, counsel for defendant in his answer denied each and all of the facts alleged in the complaint, and in special defense set forth that if defendant had in his possession the property described in the complaint, it was due to the fact that plaintiff sold it to him, which sale was recorded in a public instrument duly executed and signed by plaintiff in the presence of witnesses. Defendant's counsel therefore prayed the court to absolve his client from the complaint and to hold defendant to be the absolute owner of the disputed property, and to sentence plaintiff to hold her peace for ever and to pay the costs.After trial and the hearing of evidence by both parties, the court rendered the aforementioned judgment, to which defendant excepted and by written motion asked for a reopening of the case and a new trial. This motion was denied, exception to this ruling was taken by defendant and, upon presentation of the proper bill of exceptions, the same was approved and transmitted to the clerk of this court.The sole question to be resolved in this litigation is whether or not the instrument of purchase and sale of two parcels of land and a plow carabao, Exhibit 1, is null and void. The defendant alleges that by means thereof he acquired the possession and ownership of the said property, while the plaintiff, in turn, sets forth in her complaint that the said instrument is of no value whatever, as her consent thereto was obtained by means of fraud and deceit on the part of defendant.The instrument, the annulment whereof is requested by the plaintiff, is Exhibit 1 (p. 27 of the record). If sets forth that on November 3, 1911, plaintiff Andrea Dumasug, in consideration of the sum of P333.49 which she received from defendant, Felix Modelo, sold and conveyed to the latter outright two parcels of land and the plow carabao which are the subject matter of the complaint, and furthermore bound herself to warrant and defend the title thereto. This contract of sale appears to be authorized by the vendor, Andrea Dumasug, by means of a cross placed between her Christian name and surname in the presence of the witnesses Mariano Abear and Apolina Minosa, and certified before a notary on the very date of its execution.In regard to the events leaving up to the said contract, it ought to be stated that on October 12, 1910, Andrea Dumasug filed suit in the justice of the peace court of Argao against Rosales Albarracin and Gaudencio Saniel, for the recovery of a parcel of land belonging to plaintiff, measuring twogantas, on which were growing seven clumps of bamboo. Judgment was rendered for the plaintiff and the usurped land was ordered restored to her. (See case No. 1211, p. 1, record.) But subsequently, on March 2, 1911, these former defendants, Rosales Albarracin and Gaudencio Saniel, commenced procee